Alabama Advisory Opinions June 06, 2003: AGO 2003-159 (June 6, 2003)

AGO 2003-159.

Dear Representative Johnson:

This opinion of the Attorney General is issued in response to your request.

QUESTION 1

Does the Help America Vote Act allow the use of an inter-agency agreement between the Office of the Secretary of State and the Office of Voter Registration for the purpose of administering the statewide central voter file?

This Office recently opined that the Secretary of State is Alabama's chief election official for purposes of the Help America Vote Act of 2002 ("HAVA"), and that the HAVA Act provides that the state's chief election official is responsible for a single, uniform, official, centralized, interactive, computerized statewide voter registration list. Opinion to Honorable Nancy L. Worley, Secretary of State, dated May 30, 2003, A.G. No. 2003-156. This opinion was based upon section 303(a) of the Act, which provides that the State, acting through the chief election official, shall implement a statewide voter registration list. The HAVA Act does not specify the methods that the State must use to implement the statewide voter registration list, and the opinion to Secretary of State Worley did not address the methods that may be used to implement the statewide voter registration list. The method selected for implementation of the HAVA Act is within the discretion of the State, as long as the State acts through the Secretary of State to implement the statewide voter registration list.

Your request refers to section 17-4-255 of the Code of Alabama, which authorizes the Secretary of State to enter into inter-agency agreements with other governmental agencies for the implementation of the National Voter Registration Act of 1993 ("NVRA"). This section and sections 17-4-250 through 17-4-256 were adopted in compliance with the mandates of the NVRA Act that require the State to "designate a State officer or employee as the chief State election official to be responsible for coordination of State responsibilities" under the Act. 42 U.S.C.A. § 1973gg-8 (West 2003); Ala. Code §§ 17-4-250 to 17-4-256 (1995). Similarly, the HAVA Act requires that its provisions be implemented by each state, acting through the person designated in each state as the chief election officer of the State. See 42 U.S.C.A. § 15403 (West 2003).

Because the Help America Vote Act of 2002 does not specify the methods that must be used to implement the Act, the Secretary of State has the authority to enter into inter-agency agreements with the Office of Voter Registration or other governmental agencies for the purpose of administering the statewide voter registration list. The Legislature also has the authority, through legislation, to require the Secretary of State to enter into an inter-agency agreement with the Office of Voter Registration for the purpose of administering the statewide voter registration list.

QUESTION 2

Can the same type relationship between the two offices utilized for the implementation of the National Voter Registration Act also be used for the implementation of the Help America Vote Act?

As stated under Question 1, sections 17-4-250 through 17-4-256 of the Code of Alabama were adopted by the Legislature to ensure compliance with the mandates of the NVRA Act. Section 17-4-255 authorizes the Secretary of State to promulgate rules and regulations to implement the NVRA Act of 1993 and authorizes the Director of Voter Registration to work in "cooperation and coordination with the Secretary of State and under his or her direct supervision for the implementation of the National Voter Registration Act of 1993."

Ala. Code § 17-4-255 (1995).

As stated above, the method selected for implementation of the HAVA Act is within the discretion of the State, as long as the State acts through the Secretary of State to implement the statewide voter registration list. The State, through the Legislature, may choose a method of implementation similar to that used with respect to the NVRA Act, or it may choose another method. To specifically answer your question, the Legislature may authorize the Director of Voter Registration to coordinate and work with the Secretary of State and work under his or her supervision for purposes of implementing the statewide voter registration list required pursuant to the HAVA Act.

CONCLUSION

Because the Help America Vote Act of 2002 does not specify the methods that the State must use to implement the Act, the Legislature may authorize the Director of Voter Registration to coordinate and work with the Secretary of State and work under his or her supervision for purposes of implementing the statewide voter registration list required pursuant to the HAVA Act.

I hope this opinion answers your questions. If this Office can be of further assistance, please contact Brenda F. Smith of my staff.

Sincerely,

BILL PRYOR

Attorney General

By: CAROL JEAN SMITH

Chief, Opinions Division

BP/BFS

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